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"Comment," Capital District Business Review, Albany, N.Y., September 27, 1999

DEC should revisit wetlands mapping


Saratoga County property owners are up in arms. The state Department of Environmental Conservation has just remapped wetlands in the county, doubling the jurisdictional wetlands to more than 50,000 acres and thereby bringing 4,200 additional private parcels into its domain.

From the property owner's viewpoint, wetlands designation means expensive permit applications from the agency and many restrictions on the use of private property.

Hundreds of property owners complained at the DEC information meetings in Saratoga County culminating in more than 200 property owners packing into the single DEC public hearing at Ballston Spa. At least 550 property owners made formal requests that the designation of their property be reconsidered.

When the Freshwater Wetlands Act was passed in 1975, it provided for voluntary cooperative agreements to protect wetlands and for tax abatement. Furthermore, the law generally restricts the DEC to regulating wetlands of more than 12.4 acres.

The DEC has disregarded the provision for voluntary cooperative agreements and treated tax abatement like a stepchild. In addition, although the DEC once routinely used land acquisition funds to compensate wetlands owners, it gradually has allowed the punitive approach to dominate wetlands protection.

Finally, with the remapping in Saratoga County, the DEC is unilaterally superseding the well-reasoned minimum jurisdictional wetlands size set by New York law.

In issuing the new wetlands maps for Saratoga County, which, along with Clinton County, is the first county in the state to be remapped, the DEC has stretched the definition of wetlands and invented a tricky new way of measuring wetlands area that brings many very small wetlands artificially up to the 12.4-acre minimum.

Whereas soil type, vegetation species and water saturation are required to make a true wetland, the DEC often bases its classification on just one characteristic, such as vegetation like purple loosestrife, which also can grow on dry land.

But the DEC's big innovation in the Saratoga County wetlands remapping which will come to haunt every other county in New York unless the Saratoga County maps are withdrawn, is that it has used the "string of beads" method to measure wetlands. The DEC connects small (2-, 4-, 7-, etc. acre) wetlands along a tiny brook until the 12.4-acre minimum has been achieved. This is the main reason the wetlands area is being doubled without any changes in the law.

For certain other areas of environmental preservation of land, the state uses a voluntary approach involving compensation. For example, the Department of Agriculture and Markets awards conservation easements to preserve cropland. The DEC itself has been purchasing multimillion-dollar conservation easements to protect forestry. Yet even though the law calls for voluntary cooperative agreements, the DEC does not have one such agreement with either a landowner or municipality on file.

Likewise, real estate tax abatement to achieve public goals is quite common to state agencies, including the DEC. Under the STAR real estate tax exemption program, the veterans' and old-age exemption systems, the agricultural district program and the 480-a program for forestry tax relief, the state provides detailed guidance down to the actual application forms for taxpayers and local assessors.

But although tax abatement is called for in the 1975 law, the DEC never issued tax abatement regulations. In fact, all that the agency ever has published for the taxpayer or assessor is a little green flier dating from the Cuomo administration with only cursory information and no application form.

Threatened by the cost of challenging wetlands designations at their own expense and faced with no prospects of compensation or tax abatement, it's no wonder Saratoga County property owners are up in arms.

This failure to develop a system to cooperate with and compensate landowners—coupled with the absence of procedures to grant tax abatements to them and reimbursement to local municipalities—leaves a vacuum in wetlands policy. Has this vacuum acted as an incentive toward overzealous designation of wetlands?

Legislation to strengthen the original vision of balanced wetlands policy is urgently needed. Support is growing for the three proposals by Assemblyman Robert Prentiss (R-Colonie), who represents parts of Saratoga and Albany counties.

Prentiss's first proposal is to create a Uniform Wetlands Compensation/Abatement Board to which landowners could apply to sell conservation easements. His proposal for a Citizens Expertise Fund would reimburse needy property owners for the burdensome costs of challenging wetlands designations. The assemblyman's third proposal is for a detailed tax abatement program jointly promulgated by the DEC and the Office of Real Property Tax Services similar to the 480-a forestry program, which would be handled by local assessors and provide for state reimbursement to localities as in the SCAR program.

While proposals that would protect landowners are under consideration, it is essential that the new wetlands maps for Saratoga County be withdrawn. Landowners should not be penalized for the DEC's overzealousness resulting from the state's failure to fairly budget wetlands costs.

Property Rights Foundation of America Inc., based in Stony Creek, Warren County, is the sponsor of an annual statewide conference on private property rights.

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